Employment Attorneys representing plaintiffs in employment claims understandably focus on the merits of the underlying claim(s), looking for evidence that helps prove that discrimination or retaliation has occurred. While this is tremendously important, there are defenses which companies often assert which don’t relate to the merits of the case but can seriously limit the recoverable damages when the underlying claim is proven.
This blog presents some of these defenses, and alerts and clients to steps which need to be taken to limit the likelihood that these defenses will be successful and thus maximize damages for successful clients.
Mitigation of Damages
To maximize economic loss damage recovery, plaintiffs in employment claims have an obligation to “mitigate” the damages they have suffered by actively looking for another job. This burden is not great, but if there is not a complete record of your client’s job search, a failure to mitigate defense could be successful.
The mitigation obligation simply requires that a plaintiff seek “comparable” employment to the job she/he lost because of workplace discrimination or retaliation. The plaintiff does not have to be successful in this job search and does not have to seek or accept employment that is not “comparable” to the position lost, or that would require relocation or other significant burdens.
It is therefore very important at the outset of any representation to explain to your client that they need to be actively seeking comparable employment, and that a full written record of this job search needs to be consistently maintained and produced in discovery. Therefore, any job applications, interviews, or even “networking” efforts must be documented. The failure to do this for any period could result in a court ruling that the mitigation obligation has not been satisfied, and that no economic loss recovery will be permitted for that time period.
The After-Acquired Evidence Defense
Defendants facing employment claims will often look through the evidence of the plaintiff’s employment in an effort to “discover” additional reasons for the termination that are very difficult to successfully challenge, even if these reasons actually played no part in the termination decision that is being challenged. For instance, the former employer will often closely examine any resume or application the plaintiff may have submitted for the position, and if there are any misrepresentations discovered in this process, this can be asserted as a “defense” to the damages the plaintiff could recover. This could also involve other alleged “misconduct” committed by the plaintiff during employment, but not discovered until after termination.
This is called the “after-acquired evidence defense” (AAED). The AAED is limited to alleged misconduct engaged in during employment but not discovered until after termination. See McKennon v. Nashville Banner Publ. Co., 513 U.S. 352, 115 S. Ct. 879 (1995). When this defense applies, it will not completely bar the claim, but could cut-off the recoverable economic loss damages at the time this alleged misconduct was discovered after the challenged wrongful termination decision.
In attempting to defeat this defense, focus on how the defendant has the burden of proving that any misconduct would have resulted in termination, and require defendant to create a record that similar instances in the past did result in termination. If the defendant can’t do that, this defense will likely fail.
Social Media Postings After Termination
Defendants facing employment claims will also seek to actively monitor what the plaintiff has posted online and will seek any such communications in discovery. Careless communications online can sometimes result in successful defenses, whether to liability or damages. For instance, a plaintiff may freely communicate information online which establishes a lack of mitigation, or which could undermine other compensatory damages (i.e. emotional distress or reputational damages). Even worse, attempts to disparage a former employer could give rise to an AAED based on alleged post-termination misconduct. In a similar vein, post-termination communications about the underlying merits of the dispute that are inconsistent with what is alleged in the Complaint could be used as admissions to defend against liability.
It is therefore critically important to communicate with clients at the outset of representation, and preferably before litigation has commenced, to be very diligent in not posting anything online which could be harmful to the case or limit damages. The best approach is to instruct the client to refrain from posting anything about their former employer or the claims at issue.
